The US Justice Department is unlikely to stop the 'fundraising free-for-all' of 2016 presidential campaigns

Republican presidential
hopeful Jeb Bush, the former governor of Florida, talks to a
throng of media personnel after addressing an economic summit
hosted by Florida Gov. Rick Scott in Orlando, Florida, June 2,
2015.REUTERS/Steve
Nesius

NEW YORK (Reuters) - White House hopefuls raking in record
amounts of money in the 2016 presidential race are already being
accused by watchdog groups of breaking campaign fundraising laws.

But the Department of Justice is unlikely to prosecute possible
violations and halt the funding free-for-all, say current and
former department officials.

With deadlock in the campaign finance regulator, the Federal
Election Commission, watchdog groups are calling on the Justice
Department to investigate contenders such as Republican Jeb Bush,
who they say is conducting a charade of "non candidacy" to skirt
federal election fundraising laws.

But interviews with 11 current and former Justice Department
officials indicate the department is unlikely to enforce rules
before the November 2016 election, or even after. That means the
election could unfold with record money - predictions are for
overall campaign chests of more than $5 billion, double the cost
of the 2012 election - but little regulation, they said.

The FEC, a six-person commission made up of three Democrats and
three Republicans, has become paralyzed because, for the most
part, partisan disputes have prevented the commissioners from
opening new investigations.

"The fact that the FEC is neutered is not going to motivate the
DOJ to go out on a limb and do a bunch of these cases," said
former federal prosecutor Jonathan Biran, who started his 17-year
career at the Justice Department in the criminal division's
public integrity section, which traditionally prosecutes campaign
finance crimes. Biran is now in private practice.

All of the people interviewed said the department would be
reluctant to do anything during election season out of concern it
would appear politically motivated.

They also noted that, even after the election, campaign finance
cases would be extremely difficult to bring, especially since the
department has been spooked by some high-profile failures in
recent years.

There's also the fact that campaign finance is supposed to be
policed by the FEC, not the Justice Department.

Republican donor Shaun
McCutcheon (L) departs the U.S. Supreme Court after his
McCutcheon v. Federal Election Commission case argument in front
of the U.S. Supreme Court in Washington October 8, 2013. The U.S.
Supreme Court debated whether to lift restrictions on how much
people can donate to political candidates and parties.REUTERS/Gary Cameron

The Justice Department declined comment.

FEC Democratic Commissioner Ellen Weintraub says the agency is
"broken" and "beyond dysfunctional." Republican Commissioner Lee
Goodman counters that the FEC is succeeding in achieving more
compliance. (For a graphic on FEC fines, see http://reut.rs/1Jo19IN)

New fundraising climate

The new, fast-and-loose nature of campaign finance follows the
Supreme Court's 2010 Citizens United decision, which allowed
corporations and individuals to spend unlimited amounts of money
to advocate for and against candidates through independent
political action committees (PACs) so long as they did so without
coordinating with candidates.

The ruling, former and current Justice Department officials say,
has muddied the area and made it harder to ascertain what is and
is not legal.

At the same time, the ruling has ushered in an era of fundraising
experimentation, with the chief innovator being former Florida
Governor Bush, who has headlined dozens of political fundraisers
on behalf of his outside spending group, the Right to Rise Super
PAC.

Former Florida Gov. Jeb
Bush (R).AP/Ricardo
Arduengo

Campaign finance laws bar declared candidates from maintaining
such a close relationship with an independent PAC. But Bush is
not subject to such a bar since he has delayed his official
announcement - even though he launched his undeclared campaign
months ago.

"We are fully complying with the law in all activities Governor
Bush is engaging in on the political front, and will continue to
do so," Bush spokeswoman Kristy Campbell said in response to
questions about his fundraising activities.

Mission to avoid politics

Late last month, two groups, the Campaign Legal Center and
Democracy 21, wrote to Attorney General Loretta Lynch urging her
to appoint a special independent counsel to investigate Bush. In
an editorial this week, The New York Times echoed their call.

Yet even the most cleancut cases involving election law
violations are perilous for federal prosecutors. As it turns out,
one of the Justice Department's missions is to avoid getting
involved in politics in the first place.

"Anyone hoping the DOJ will suddenly become an aggressive
campaign finance police force will quickly be disappointed," said
Michael Johnston, a professor of political science at Colgate
University.

Johnston said corruption charges filed this year against several
New York state politicians, including former New York State
Assembly Speaker Sheldon Silver and former New York State Senate
Majority Leader Dean Skelos, who had been in office for decades
and had allegedly broken the law for many years before being
charged, were examples of how slow the Justice Department
typically is in bringing public corruption cases. Both men have
pleaded not guilty to the charges.

Former New York Assembly
speaker Sheldon Silver arrives for his arraignment hearing, at
the U.S. Federal Courthouse in the Manhattan borough of New York,
February 24, 2015.Reuters

A little-noticed passage of the official manual that guides
federal prosecutors specifically warns against interfering in
elections. And two Justice Department officials speaking on the
condition of anonymity said U.S. prosecutors are instructed to be
cautious when contemplating bringing cases against politicians.

Disappointing
setbacks

Many criminal cases take longer
to build than even the lengthy U.S. election season.

When fundraiser Diana Durand was arrested in January 2014 for
illegally funneling money to two congressional campaigns, the
charges she faced were for crimes she committed in 2009 and 2010,
two election cycles earlier. She pleaded guilty and was sentenced
in March to three months in prison.

Additionally, those interviewed say the Justice Department has
been unnerved by recent disappointments in what were considered
slam-dunk cases. Those include a 2008 conviction against former
Alaska Senator Ted Stevens for illegal kickbacks that was later
thrown out after a judge determined prosecutors had hidden
exculpatory evidence in the case.

Another high-profile embarrassment was the Justice Department's
case against former Democratic presidential contender John
Edwards, who was charged with using $1 million in political
donations to hide his mistress and love child. In 2012, Edwards
was partially acquitted. The remaining charges were
dropped.

Smoking-gun cases

That's not to say campaign insiders couldn't come forward
-brandishing smoking-gun documents - that would incriminate
politicians and their staffers. With such blatant evidence of a
crime, prosecutors could be forced to act, but even then,
insiders say, they would not rush to make a case.

In February, prosecutors brought their first-ever "coordination
case" against a campaign manager, Tyler Harber, for illegally
working with an outside spending group.

The case's best evidence came from a whistleblower who passed on
documents showing Harber had used an alias in his dealings with
the outside group to avoid getting caught. Harber pleaded guilty
to breaking the law while working for a candidate in a 2012
congressional race.

But those interviewed by Reuters said the Harber case could
hardly be seen as a harbinger for cases in the presidential race.
White House contenders, they pointed out, have armies of
well-seasoned campaign finance lawyers whose job it is to build
legal insulation around their candidates.